Challenge in this appeal is to the
judgment of a learned Single Judge of the Andhra Pradesh High Court. By
the impugned judgment conviction of the appellant for offences
punishable under Sections 354 and 448 of the Indian Penal Code, 1860 (in
short the 'IPC') was upheld, but the conviction for offence punishable
under Section 306 IPC was set aside. However the sentence of three years
imprisonment for offence punishable under Section 354 IPC which was
imposed by the trial court was reduced to two years. The sentence of six
months imprisonment and fine for offences relatable to Section 448 IPC
were maintained by the High Court.

3. Prosecution version in a
nutshell is as follows:
Shaik Khasim Bee (hereinafter referred to as the 'deceased') is daughter
of Shaik Nagoor (PW5) and Shaik Nazer Bee (PW 1). Accused, Shaik Nagoor
was at the relevant point of time the tenant in their house at
Singhnagar, Vijayawada. Accused as a tenant in a small hut in the same
compound of the house of PW 1. It appears that accused was soliciting
the deceased for sexual intercourse. On 12.11.1999 around 1.00 pm. PW 1
and the deceased went for Namaz and thereafter deceased returned home
while PW-1 was coming behind after talking to one Kursheed begum for
some time. When the deceased came home and went into middle portion of
the house, which was vacant for collecting dried clothes, accused
allegedly came behind, caught hold of her, and when she threatened him
saying that she would complain to her mother about the acts of the
accused, he in turn replied that he himself, would complain to her
mother saying that she herself called him and thereby, would defame her
and her family.

Feeling disturbed and suffering from
emotional turmoil, deceased went into room, poured kerosene and set fire
to herself. On receipt of intimation from the Hospital, police of Nunna
Rural Police Station, Vijayawada City, registered a case against the
accused in Crime No. 258 of 1999 for the offences punishable under
Sections 448, 354 and 306 IPC and after investigation filed charge sheet
and the same was taken on file in S.C. No. 181 of 2001. Accused pleaded
innocence and false implication.

4. In order to further its version
prosecution examined 12 witnesses and marked several documents. The
trial court placed reliance on the dying declaration (Exh. P4 P9)
recorded by the learned 7th Additional Senior Civil Judge, City Civil
Court, Hyderabad and the Head Constable respectively on 12.11.1999. The
High Court found that offence under Section 306 IPC as noted above was
not made out. However, concurred with the learned trial judge that the
offences punishable under Sections 354 and 448 IPC were clearly made
out. Accordingly the impugned judgment was passed.

5. In support of the appeal, learned
counsel for the appellant submitted that the dying declarations should
not have been relied upon by the trial court and the High Court. It was
his case that considering the extent of burns sustained by the deceased
it was impossible on her part to give any dying declaration.

6. Learned counsel for the
respondent on the other hand supported the impugned judgment of the High
Court.

7. We see no reason to doubt the
veracity of the dying declarations especially since there is consistency
between them. We see no reason why the judicial officer should make a
false statement about the dying declaration.

8. As observed by this Court in
Narain Singh v. State of Haryana AIR vide para 7: (SCC p. 267, para
7)
"A dying declaration made by a person on the verge of his death has a
special sanctity as at that solemn moment a person is most unlikely to
make any untrue statement. The shadow of impending death is by itself
guarantee of the truth of the statement of the deceased regarding the
circumstances leading to his death. But at the same time the dying
declaration like any other evidence has to be tested on the touchstone
of credibility to be acceptable. It is more so, as the accused does not
get an opportunity of questioning veracity of the statement by
cross-examination. The dying declaration if found reliable can form the
base of conviction."

9. In Babulal v. State of M.P.
(2003 (12) SCC 490) this Court observed vide in para 7 of the said
decision as under: (SCC p. 494)
"A person who is facing imminent death, with even a shadow of continuing
in this world practically non-existent, every motive of falsehood is
obliterated. The mind gets altered by most powerful ethical reasons to
speak only the truth. Great solemnity and sanctity is attached to the
words of a dying person because a person on the verge of death is not
likely to tell lies or to concoct a case so as to implicate an innocent
person. The maxim is 'a man will not meet his Maker with a lie in his
mouth' (nemo moriturus praesumitur mentiri). Mathew Arnold said, 'truth
sits on the lips of a dying man'. The general principle on which the
species of evidence is admitted is that they are declarations made in
extremity, when the party is at the point of death, and when every hope
of this world is gone, when every motive to falsehood is silenced and
mind induced by the most powerful consideration to speak the truth;
situation so solemn that law considers the same as creating an
obligation equal to that which is imposed by a positive oath
administered in a court of justice."

10. In Ravi v. State of T.N.
((2004 (10) SCC 776) this Court observed that: (SCC p. 777, para 3)
"If the truthfulness of the dying declaration cannot be doubted, the
same alone can form the basis of conviction of an accused and the same
does not require any corroboration, whatsoever, in law."

11. In Muthu Kutty v. State
(2005 (9) SCC 113) vide para 15 this Court observed as under: (SCC pp.
120-21) "15. Though a dying declaration is entitled to great weight, it
is worthwhile to note that the accused has no power of
cross-examination. Such a power is essential for eliciting the truth as
an obligation of oath could be.

This is the reason the court also
insists that the dying declaration should be of such a nature as to
inspire full confidence of the court in its correctness. The court has
to be on guard that the statement of the deceased was not as a result of
either tutoring, or prompting or a product of imagination. The court
must be further satisfied that the deceased was in a fit state of mind
after a clear opportunity to observe and identify the assailant. Once
the court is satisfied that the declaration was true and voluntary,
undoubtedly, it can base its conviction without any further
corroboration. It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of conviction unless it
is corroborated. The rule requiring corroboration is merely a rule of
prudence. This Court has laid down in several judgments the principles
governing dying declaration, which could be summed up as under as
indicated in Paniben v. State of Gujarat (1992 (2) SCC 474) : (SCC pp.
480-81, paras 18-19) (emphasis supplied) (i ) There is neither rule of
law nor of prudence that dying declaration cannot be acted upon without
corroboration. (See Munnu Raja v. State of M.P. (1976 (3) SCC
104)

(ii) If the Court is satisfied that
the dying declaration is true and voluntary it can base conviction on
it, without corroboration. (See State of U.P. v. Ram Sagar Yadav
and Ramawati Devi v. State of Bihar (1985 (1) SCC 552)

(iii) The court has to scrutinise
the dying declaration carefully and must ensure that the declaration is
not the result of tutoring, prompting or imagination. The deceased had
an opportunity to observe and identify the assailants and was in a fit
state to make the declaration. (See K. Ramachandra Reddy v. Public
Prosecutor (1976 (3) SCC 618)

(iv) Where dying declaration is
suspicious, it should not be acted upon without corroborative evidence.
(See Rasheed Beg v. State of M.P. (1974 (4) SCC 264)

(v) Where the deceased was
unconscious and could never make any dying declaration the evidence with
regard to it is to be rejected. (See Kake Singh v. State of M.P.(1981Supp.
SCC 25)

(vi) A dying declaration which
suffers from infirmity cannot form the basis of conviction. (See Ram
Manorath v. State of U.P.(1981 (2) SCC 654)

(vii) Merely because a dying
declaration does not contain the details as to the occurrence, it is not
to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati
Naidu (1980 Supp. SCC 455)

(viii) Equally, merely because it is
a brief statement, it is not to be discarded. On the contrary, the
shortness of the statement itself guarantees truth. (See Surajdeo
Ojha v. State of Bihar (1980 Supp. SCC 769))

(ix) Normally the court in order to
satisfy whether deceased was in a fit mental condition to make the
dying declaration look up to the medical opinion. But where the
eyewitness said that the deceased was in a fit and conscious state to
make the dying declaration, the medical opinion cannot prevail. (See
Nanhau Ram v. State of M.P. (1988 Supp. SCC 152)(x) Where the
prosecution version differs from the version as given in the dying
declaration the said declaration cannot be acted upon. (See State of
U.P. v. Madan Mohan (1989 (3) SCC 390 )

(xi) Where there are more than one
statement in the nature of dying declaration, one first in point of time
must be preferred. Of course, if the plurality of dying declaration
could be held to be trustworthy and reliable, it has to be accepted.
(See Mohanlal Gangaram Gehani v. State of Maharashtra (1982 (1)
SCC 700)"

12. So far as the practicability of
the deceased giving dying declaration is concerned it is significant
that the learned Additional Senior Civil Judge who has examined PW 7 and
the constable PW 10 have described in detail as to what the deceased has
stated to each one of them. There was not even any suggestion to either
of the witnesses that the deceased was not in a fit condition to give
any statement as claimed. That being so, there is no substance in the
plea of learned counsel for the appellant that the deceased was not in a
physical condition to give a statement.

13. The trial Court and the High
Court have analysed the evidence of these witnesses and the statements
made in the dying declaration referred to above to hold the accused
guilty.

14. That being so, no interference
is called for. The appeal fails and is dismissed.